Last week, the Supreme Court heard oral arguments in challenges to the Biden administration’s workplace COVID-19 rules, one of which would require vaccination or masking-and-testing protocols for around 84 million people across the country. In the first in-person oral argument since the omicron surge began, only eight justices took the bench; Justice Sonia Sotomayor, who is particularly at risk for COVID-19 complications because of her diabetes, elected to participate remotely from her chambers. Of the eight remaining justices, seven wore masks. Only one, Neil Gorsuch, decided to spend four-plus hours spewing airborne particles onto and around his elderly colleagues.
Over the weekend, Gorsuch earned considerable backlash for this bare-faced performance. The Washington Post’s Ruth Marcus, whose questions about Gorsuch’s masklessness to the Court’s public information office went unanswered, criticized his choice as emblematic of the selfishness and irresponsibility that has frustrated the nation’s COVID-19 pandemic response. Although all nine justices are vaccinated and boosted, the contagiousness of the omicron variant means that breakthrough cases remain a real possibility. On a nine-person body with five members over age 65 and three over 70, this seems like a relevant consideration for everyone involved!
“Like his colleagues, he had a choice about whether to wear a mask,” Marcus wrote. “Unlike them, he chose poorly.”
If Gorsuch heard any of this criticism, he decided not to act on it. On Monday, when the justices reconvened to hear oral argument in Gallardo v. Marstiller, he was again the only one to take the bench without a mask, per the Associated Press’s Mark Sherman. Sotomayor, whose seat is next to Gorsuch’s in the courtroom, again opted to ask questions from her chambers.
Gorsuch’s conduct contrasts starkly with the rules enforced against lawyers at the Supreme Court, who are required to wear N95 or KN95 masks throughout the building except while actually arguing their case. Journalists and lawyers also have to get a negative PCR test for COVID-19 before entering, and any lawyer who tests positive has to participate remotely. (This, incidentally, was the case on Friday, as two of the lawyers arguing against vaccine rules came down with COVID-19.) Only the justices, essential staff, the lawyers in the cases, and a handful of reporters are allowed inside the building, which remains closed to the general public. An implicit exception from the mask-wearing requirement for the justices is one that Gorsuch is apparently happy to exploit.
Maskless Gorsuch is single-handedly proving why rules requiring vaccines or masks—something of which he and his fellow conservatives were quite skeptical last week—actually make a lot of sense. As Justice Elena Kagan pointed out during oral argument on Friday, workplaces are particularly fraught places during the pandemic because workers have no choice but to show up, and no control over what their colleagues do. “You have to be there for eight hours a day. You have to be there in the exact environment that the workplace is set up with,” she said. “And you have to be there with a bunch of people you don’t know, and who might be completely irresponsible.”
As the pandemic enters its third year, mask-wearing has become a pretty common expectation in most public places; as Marcus noted, Gorsuch would be required to wear one basically anywhere else in D.C., from the grocery store to the pharmacy to his next speaking engagement at the Trump International Hotel. By publicly refusing to do so, Gorsuch aligns himself with some of the pandemic’s most insufferable people: the trolling culture warriors who are proud not to give a shit about anyone but themselves. Had Kagan wanted to drive home her point about “completely irresponsible” colleagues any further, she could have simply gestured a few seats down.
